Haryana

Panchkula

CC/626/2019

HET RAM. - Complainant(s)

Versus

PROGRESSIVE INTERNATIONAL OFFICE. - Opp.Party(s)

COMPLAINANT IN PERSON.

08 Sep 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

                                                       

Consumer Complaint No	:	626 of 2019
Date of Institution	:	02.12.2019
Date of Decision	:	08.09.2023

 

Het Ram, Prop.  Het Ram Chauhan & Sons, SCF No.3, Sector-20, Panchkula(Haryana).

    ..….Complainant

Versus                                                                  

1.     Progressive International office of N945 APMC Fruit Market Turbhe. Navi Mumbai through its authorized signatory.

2.     New South India Roadways SCF 52 Grain Market Sector-20, Panchkula(Haryana) through its authorized signatory.

                                                                        ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member

Dr. Barhm Parkash Yadav, Member

 

For the Parties:   Complainant in person with Sh.Moin Hussan, Advocate for the complainant.

                        Sh. Rajesh Kumar, Proprietor of OP No.2 along with Sh. Sunil Kumar Mukhi, Advocate.

                       

ORDER

(Satpal, President)

1.The brief facts, as alleged of the present complaint are that the complainant is running the business of commission agent of fruits under the name and style of Het Ram Chauhan & Sons, SCF No.3, Sector-20, Panchkula(Haryana); he/complainant is running the said business for earning the livelihood for himself and his family members; the said business is only source of the income of the complainant and his family members. It is stated that the OP no.1 i.e. Progressive International is a Consignee and the OP no.2 i.e. New South India Roadways is the transporter. The OP no.1 had placed an order, for delivery of 584 boxes of apples and pears, upon the complainant, for Rs.7,16,222/- vide bill no.1003 dated 24.07.2019 and after receiving  order from OP No.1, the complainant had booked a consignment with the OP No.2 for the transportation of the above said consignment vide consignment no.2886 dated 24.07.2019 with vehicle no.RJ-13-GB-5261. The total amount of transportation was Rs.64,400/-; out of which, Rs.20,000/- was paid in advance by the complainant and it was settled that the remaining amount would be paid  to OP No.2 after the confirmation of the delivery of consignment to OP No.1. It is submitted that the services of OP No.2 was hired by the complainant only on the basis of trust and belief, that he would provide the quality services to him and would deliver the consignment well in time to OP No.1 and also to take care about the consignment during the transportation. The consignment was got loaded in the truck bearing registration no.RJ-13-GB-5261 from Panchkula to Mumabi. The payment of the consignment was to be made by OP No.1 to complainant through online mode after the receipt of the said consignment. It is submitted that the consignment having 584 boxes of apples & pears were sent to OP No.1 on 24.07.2019 through driver of OP No.2, having mobile no. 7814723887, and after three days, when the complainant contacted the OP No.1 on his mobile no.9769740115 and asked about the delivery of the consignment, the OP No.1 replied that the consignment has not been received. The consignment was having perishable items; so, the complainant was worried about the delivery of the consignment; so; he contacted the OP No.2 who replied that the consignment yet was not delivered due to ill health of the driver and soon the same would be delivered to OP No.1. It is stated that the consignment was not delivered by OP No.2 to OP No.1 and due to malafide intentions of OP No.2, the complainant suffered a loss of Rs.7,16,222/- and mental harassment too. It is stated that the complaint was lodged by the complainant in the Police Station, Section-20, Panchkula in the matter seeking the appropriate legal action against OP No.2. It is stated that the Ops had been hand in gloves with each other and due to the act and conduct of the OPs, the complainant has suffered a great mental agony, physical harassment and financial loss; hence, the present complaint.

2.Initially, notice was not issued against OP No.1. However, notice to it was issued, as per the request of the complainant, in pursuance to the order dated 06.06.2023. Notice was received back unserved with the report of post office “Incomplete address”.  

                Upon notices, OPs No.2  appeared through counsel and filed written statement raising preliminary objections that the complainant is a habitual defaulter and is a known cheater, having committed number of defaults and frauds with various dealers and commission agents.

                On merits, it is submitted that the complainant had booked an apple consignment with the OP No.2 vide GR/consignment no.2886 dated 24.07.2019, vide truck no.RJ-13-GB-5261 from Panchkula to Bombay having 584 apple boxes, for a freight of Rs.66,400/-, out of which Rs.20,000/- was given in advance to the truck owner, who is also the driver of the said truck, while the balance of Rs.44,400/- was received by the truck driver Mr. Amrik Singh s/o Mr. Rajender Singh. It is stated that the firm owner of M/s Progressive International being OP No.1, in Bombay, in whose name, the goods i.e. 584 apple boxes were meant to be delivered  had refused  to accept  the same as there was some dispute between the complainant Mr. Het Ram on one hand and the OP No.1 on the other hand, and thus, Het Ram(complainant) through one Mr. Goldie, some known person of hims informed the driver to deliver the goods to M/s Babu Shankar Ram Dhani Pal in the APMC i.e. the main fruit Market at Navi Mumbai having Mandi Aarahti license no.3388. It is submitted that the consignment was delivered to OP No.1 by the driver Sh. Amrik Singh of truck no.RJ-13-GB-5261, qua which there was an entry in the APMC gate register. It is submitted that the photographs of the mandi area in front of shop of the M/s Babu Shankar Ram Dhani Pal with Sh.Babu Shankar standing thereon was captured by truck driver. The copy of labour union register regarding unloading of the boxes of Apple is Annexed. It is submitted that the audio recording of the conversation between OP No.2 and M/s Babu Shankar Ram Dhani Pal through Mr.Babu Shankar is available  with the OP No.2, which can be produced for verification and hearing, wherein he(Mr. Babu Shankar) has categorically stated that he had transferred the money sale consideration of the 584 apple boxes in the account of Het Ram (complainant) and that his persons/associates had not paid him cash, which all clarifies the fact about the modus operandi of Mr.Het Ram the complainant adopted by him while indulging in nefarious acts of harassment of poor commission agents. It is stated that during conversation with Mr.Babu Shankar Ram, the purchaser of the goods in dispute had clarified that Mr.Het Ram had fraudulently also filed a complaint against Mr.Babu Shankar Ram before the Chairman of APMC, Navi Mumabi for non-payment of the consideration money of the said 584 Apple boxes sent through OP No.2. It is submitted that the complainant may be directed to bring and produce all the details of the complaint filed by him before the Chairman of APMC Navi Mumbai and the decision thereof which will clarify whole of the case of the complainant and of the OP No.2. Rest of the allegations alleged by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OP No.2 and as such, the complaint is liable to be dismissed.

3.The complainant has tendered his affidavit as Annexure C-A along with document Annexure C-1 to C-3 in evidence and closed the evidence by making a separate statement. On the other hand, the evidence of the OP No.2 was closed by this Commission on 16.11.2021.

                On 29.08.2022, a duly sworn affidavit of Sh.Rajesh Kumar, Proprietor of OP No.2 was tendered, which was taken on record as Mark “A” for the adjudication of the controversy in a proper and fair manner.

4. We have heard the learned counsel for the complainant assisted by the complainant in person as well as the learned counsel for OP No.2 and gone through the entire record including the written arguments filed on behalf of the complainant, minutely and carefully.

5.During arguments, the learned counsel for the complainant reiterating the averments as made in the complaint as also in the affidavit(Annexure C-A) contended that the OP No.2 had been deficient, while not delivering the consignment to OP No.1, as no receipt was provided by it to the complainant regarding the delivery of the consignment in question. It is contended that it was binding upon the OP No.2 i.e. transporter to deliver the consignment containing 574 boxes of apples etc. vide consignment bill(Annexure C-1) & Annexure C-2 to OP No.1. It is contended that the complainant has suffered financial loss as well as mental agony and harassment due to deficient services of OP No.2 and thus, the complaint is liable to be accepted by granting the relief as claimed for in the complaint. Reliance has been placed the following case laws:-

i.        Transport Corporation of India Ltd. Vs. Dinesh Agarwal s/o Muralilal Agarwal, 2020(1) CPR 554(NC).

ii.       M/s Dujodwala Products Ltd. Vs. National Insurance Co. Ltd. 2021(1) CPJ 60 (NC).

iii.      Dr. Vijil & Ors. Vs. Ambujakshi T.P. & Ors. 2022(2) KHC 34(Kerala High Court).

iv.      Babu Lal Sharma & Anr. Vs. Subhash Kumar, 2022(3) CPR 168(NC).

6.The OP No.2 has contested the complaint on several counts. The learned counsel on behalf of OP No.2 vehemently argued that a notice by the consignee i.e. OP No.1 was to be given within a period of six days qua the non receipt of the consignment, as per notification dated 28.02.2011 issued by Road Transport and Highways Authority. It is contended that no notice, whatsoever, was given by the consignee i.e. OP No.1, thus, the complaint is liable to be dismissed. The learned counsel refuting the contentions of the complainant qua the non delivery of the consignment to OP No.1, argued that consignment was duly delivered to M/s Babu Shankar Ram Dhanipal, Main Fruit Market, at Navi Mumabi on the directions of the complainant. It is contended that the complainant has already received the payment from the said firm i.e. M/s Babu Shanker Ram Dhanipal, Main Fruit Market, at Navi Mumabi. The learned counsel invited our attention towards the APMC gate register and the labour union register dated 27.07.2019 to show that 584 boxes of apples were  delivered to M/s Babu Shankar Ram Dhani vide truck no. RJ-13-GB-5261. Concluding the arguments, the learned counsel has prayed for dismissal of the complaint being frivolous, baseless and meritless.

7.Admittedly, the consignment containing 584 boxes of apples etc. was to be delivered through truck no.RJ-13-GB-5261 to progressive International APMC fruit market, Navi Mumabi i.e. OP No.1 as per  consignment slip/receipt(Annexure C-1). According to the complainant, the OP No.1 had purchased the apples/pears amounting to Rs. 7,16,222/-, as alleged, from him as per bill dated 24.07.2017 (Annexure C-2) issued by him(the complainant). As per the complainant, the said consignment was not delivered to OP No.1, whereas according to OP No.2 i.e. transporter, the consignment was duly delivered to M/s Babu Shankar Ram Dhanipal, on the directions of the complainant as a dispute between the complainant, on one hand and the OP No.1 on the other hand had arisen.

8.As per APMC gate register as well as labour union register, there is an entry at serial no.3388 qua the delivery of 584 boxes of apples, vide truck i..e RJ-13-GB-5261 to M/s Babu Shankar Ram Dhanipal.  It is the specific, consistent and categorical assertion of the OP No.2 that the complainant has already received the payment from said M/s Babu Shankar Ram Dhanipal qua the sale of 584 boxes of apples as contained in the consignment and in this regard, the OP No.2 has claimed that an audio recording of conversation between OP No.2 & M/s Babu Shankar Ram Dhanipal through Mr.Babu Shankar is available with him & the same can be produced for verification of facts qua transfer of sale amount pertaining to 584 boxes of apples/pears etc.  by said Babu Shankar in favour of the complainant. On the other hand, the complainant is silent qua the alleged transfer of sale amount by said Babu Shankar in his account qua sale of 584 boxes of apples/pears etc.

9.Pertinently, the complainant cannot be permitted to draw any kind of benefit out of the consignment slip(annexure C-1),  if he had already received the payment from said M/s Babu Shanker Ram Dhanipal qua the sale of 584 boxes of apples/pears as alleged by OP No.2.

10.We have come across  a police report Mark “B”,  in respect of a complaint lodged by the complainant himself, which make it  evident that the complainant had business relations with M/s Babu Shankar Ram Dhanipal, Main Fruit Market, at Navi Mumabi. As such, the adjudication of the dispute between the complainant and the OP No.2 as alleged in the present complaint is not feasible without hearing Mr.Babu Shankar Ram Dhanipal. Further, it has come on record that a complaint was lodged by the complainant with the Chairman of APMC, Mumbai against the said M/s Babu Shankar Ram Dhanipal. In view of these facts, the issue whether the complainant had received the payment from said M/s Babu Shankar Ram Dhanipal, qua the sale of 584 boxes of apples/pears or not is a very complicated and intricate question of facts.

11.From the above stated factual position, it is clear that the adjudication of the present complaint involves complicated questions of laws and facts, wherein examination and cross examination of the witnesses is required, which is not permissible under summary procedure being adopted in the adjudication of the consumer complaint under Consumer Protection Act, 2019. Therefore, the present complaint is not maintainable under the Consumer Protection Act. However, in the interest of justice, without commenting on the merits of the case, we deem it appropriate to dispose of the present complaint with the direction to the complainant to approach the appropriate Tribunal/ Authority/Court as per law if he/she is so advised. The complainant shall be at liberty to file an application before the concerned Court/Authority/ Tribunal under Section 14 of the limitation Act for excluding the period spent before this Commission for the purposes of computation of limitation in terms and observations made by the Hon’ble Apex Court in the case of “Luxmi Engineering Works Vs. PSG Industrial Institute 1995(III) SCC P.583”.

12.The original papers/documents, if any, attached with the present complaint be returned to complainant on his request after retaining the photocopy of the same on record. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.  

Announced on: 08.09.2023

 

 

 

         Dr. Barhm Parkash Yadav    Dr.Sushma Garg              Satpal

                  Member                       Member                     President

 

Note: Each and every page of this order has been duly signed by me.

                                           

      Satpal

                                             President

 

CC No. 626 of 2019

 

Present:             Complainant in person with Sh.Moin Hussan, Advocate for the complainant.

                        Sh. Rajesh Kumar, Proprietor of OP No.2 along with Sh. Sunil Kumar Mukhi, Advocate.

 

Arguments heard. Now, case is adjourned to 07.09.2023 for orders.

Dt. 25.08.2023

 

        Dr. Barhm Parkash Yadav     Dr.Sushma Garg            Satpal

              Member                          Member                 President

 

Present:             Complainant in person with Sh.Moin Hussan, Advocate for the complainant.

                        Sh. Rajesh Kumar, Proprietor of OP No.2 along with Sh. Sunil Kumar Mukhi, Advocate.

                        The case was fixed for 07.09.2023 for orders but the Government of Haryana vide its notification no.28/67/2008-1HR-I has declared 07.09.2023 as Gazetted holiday on account of festival (Janmashtami); thus, the case is taken up today i.e. 08.09.2023.

Vide a separate detailed order of even date, the present complaint is hereby disposed of accordingly.

         A copy of the order be sent to the parties concerned free of costs and the file be consigned to the record room after due compliance.

Dt. 08.09.2023

 

 

        Dr. Barhm Parkash Yadav     Dr.Sushma Garg            Satpal

              Member                         Member                   President